Insights Archive

The deadline for filing and service of documents in the U.S. District Court for the District of Delaware will move to 5:00 p.m. ET, effective September 1, 2022.

In 1999, the Delaware Legislature enacted 8 Del. C. § 111for the purpose of extending the Delaware Court of Chancery’s jurisdiction to disputes arising from the application, interpretation, enforcement, or validity of the certificate of incorporation and bylaws of a Delaware corporation.

The Delaware General Assembly recently enacted amendments to the DRUPA, DRULPA, DLLCA, and DSTA.

Gregory B. Williams to fill vacant seat opened by Judge Leonard P. Stark’s confirmation to the Federal Circuit.

The attorney-client privilege is a long-recognized legal principal that, in general terms, serves to protect confidential communications between an attorney and his or her client from disclosure.

Chief Judge Connolly has issued new form scheduling orders for Hatch-Waxman and non-Hatch-Waxman patent litigation as well as four new standing orders.

The Delaware Supreme Court’s 2021 decision in Brookfield Asset Mgmt., Inc. v. Rosson helped clarify whether stockholders’ financial and voting rights, diluted through a transaction with a controlling stockholder, constituted direct or derivative claims.

Today, the District of Delaware addressed the Court’s caseload due to the elevation of Judge Stark to the Federal Circuit.

Four Morris Nichols colleagues contributed to the revised edition.

Tarik Haskins contributed the chapter on Delaware to a new Global Financial Collateral book published by the American Bar Association Business Law Section.

President Biden nominated Judge Leonard P. Stark to fill the vacancy on the US Court of Appeals for the Federal Circuit created by the departure of Judge Kathleen O’Malley, who will retire in March 2022.

Section 220 provides stockholders with a powerful tool for investigating corporate wrongdoing — one that Delaware courts have repeatedly implored stockholders to use before pursuing potential claims. Recent Chancery decisions suggest that defendants should not chalk up the fee-shifting decision to a one-off.

In its 2021 session, the Delaware legislature passed a number of amendments to the Delaware General Corporation Law (DGCL) and the Delaware “alternative entity” statutes—the Delaware Limited Liability Company Act (DLLCA), the Delaware Revised Uniform Limited Partnership Act (DRULPA), and the Delaware Revised Uniform Partnership Act (DRUPA). The amendments to the DGCL, the DLLCA, the DRULPA, and the DRUPA became effective on August 1, 2021.

On August 1, 2021, amendments to the Delaware Limited Liability Company Act (the “Act”) became effective that include a number of significant substantive changes. 

On June 30, 2021, Delaware Governor John C. Carney signed House Bill 164 (“Trust Act 2021”) into law.

When implementing a plan involving the transfer of assets to more than one trust with overlapping donors and beneficiaries, prospective donors and their advisers should be mindful of the possible application, and implications, of the so-called “reciprocal trust doctrine.”

The District of Delaware issued a Standing Order today, stating that the Court will enter Phase 3 of its Covid Re-Opening Guidelines on June 7, 2021.

Judge Connolly issued a Standing Order today revising his summary judgment procedures in patent cases. Effective immediately, a party filing multiple summary judgment motions must now number the motions based on the order in which it wants the Court to review them.

On April 7, 2021, the Corporation Law Section of the Delaware State Bar Association approved amendments to the Delaware Revised Uniform Partnership Act, 6 Del. C. §§ 15-101 et seq. (the “DRUPA”), the Delaware Revised Uniform Limited Partnership Act, 6 Del. C. §§ 17-101 et seq. (the “DRULPA”), and the Delaware Limited Liability Company Act, 6 Del. C. §§ 18-101 et seq. (the “DLLCA”).

In a pair of bills introduced late last week in the Delaware General Assembly, Delaware moved to shore up its unclaimed property program through proposed amendments to its unclaimed property law that would establish unclaimed property reporting requirements for virtual currency, and create a permanent expedited audit option with significantly reduced interest for holders.  Additionally, in apparent reaction to several recent court opinions criticizing the State’s use of contingent fee audit firms, and curtailing the State’s ability to compel the production of holder records, the proposed amendments would eliminate most third-party contingent fee arrangements, and expand the State’s authority to seek records – from the holder and various third-parties – wholly unrelated to the identification of abandoned property due and owing to the State.

In a prepackaged bankruptcy—colloquially known as a “prepack”—a distressed company negotiates and solicits support of a chapter 11 plan of reorganization before commencing its chapter 11 case. The company then files for bankruptcy court protection to implement the plan, knowing that it has the requisite creditor support for its reorganization.

In a notice issued today, the District of Delaware announced its decision not to extend its February 5, 2021 Standing Order suspending jury trials.

Morris Nichols partner David Harris authored the chapter on Delaware.

As many American businesses continue to function remotely, Delaware – like other states – has concluded that VDAs and unclaimed property audits initiated by Delaware can and should continue as well. Therefore, it is accelerating its scrutiny of Delaware formed companies.

Morris Nichols prepares an annual summary of recent Delaware cases that address significant alternative entity issues.

The District of Delaware issued a Standing Order, canceling all civil and criminal jury trials until on or after April 5, 2021, in light of the ongoing impact of the coronavirus pandemic.

In response to the increasing prevalence of data breaches in both the private sector and government, the District of Delaware issued a Standing Order providing guidance on new security procedures to protect “highly sensitive documents” (“HSD”) filed with the Court.

This article discusses the bankruptcy discharge process and how prospective acquirors of bankrupt companies can identify and potentially avoid liability for legacy unclaimed property liabilities that may remain following confirmation of a plan of reorganization.

The Delaware Secretary of State announced in late August 2020 that his office was mailing nearly 200 letters to businesses identified as “holders” of unclaimed property. These Delaware-formed companies were deemed likely to be out of compliance in reporting dormant, abandoned or unclaimed property under Delaware law.

Through the years, alternative entities have evolved in complexity and grown in popularity, particularly limited partnerships (“LPs”) and limited liability companies (“LLCs”).  Morris Nichols attorneys Don Parsons, Jason Russell and Koah Doud contributed a look-back article on alternative entities to the 75th Anniversary edition of The Business Lawyer.

The U.S. District Court for the District of Delaware issued Jury Trial Restart Guidelines today providing direction to litigants “in framing pre-trial discussions that will be required in order to conduct jury trials in a manner that protects health and safety as well as litigants’ rights” during the COVID-19 pandemic.

In its 2020 session, the Delaware legislature passed a number of amendments to the Delaware General Corporation Law and the Delaware “alternative entity” statutes—the Delaware Limited Liability Company Act, the Delaware Revised Uniform Limited Partnership Act, the Delaware Revised Uniform Partnership Act and the Delaware Statutory Trust Act.

Delaware Governor John C. Carney has signed House Bill 334 into law (“Trust Act 2020”), which further improves upon Delaware trust law. 

The U.S. District Court for the District of Delaware modified its COVID-19 standing order today. The new order continued all civil and criminal jury selections and jury trials scheduled to begin before September 15, 2020.

Morris Nichols attorneys Eric Klinger-Wilensky and Melissa DiVincenzo published three guides on Delaware public benefit corporations for Practical Law Corporate & Securities. 

The Delaware Supreme Court recently decided the case of Murfey v. WHC Ventures, LLC, No. 294, 2019 (Del. July 13, 2020), which involved a dispute over whether the plaintiff limited partners were entitled to certain books and records under the partnership agreement in question.

Earlier this month, the Delaware Court of Chancery issued an opinion in Department of Finance v. AT&T, Inc., C.A. No. 2019-0985-JTL (Del. Ch., July 10, 2020). The opinion itself is narrow in scope but its result, and several of its findings regarding Delaware’s administration of its unclaimed property program, should be assessed carefully by holders and their advocates. The opinion may impact pending or new audits in two important ways.

The U.S. District Court for the District of Delaware modified its COVID-19 standing order today by continuing all civil and criminal jury selections and jury trials scheduled to begin before August 31, 2020. Jury proceedings affected by the Order will be reset by further order of the assigned judge.

On June 18, 2020, the administrators of Delaware’s unclaimed property program sent letters to companies who failed to respond to a February 2020 invitation to enroll in the Delaware Secretary of State's voluntary disclosure agreement (“VDA”) program establishing July 18, 2020 as the final date to enter the voluntary program prior to being placed under audit by the Department of Finance.

The U.S. District Court for the District of Delaware issued Re-Opening Guidelines today, describing a four-phase reopening and providing policies to be followed at each stage.

The U.S. District Court for the District of Delaware modified its COVID-19 standing order today. Although the Court remains open, all jury trials scheduled to begin before June 30, 2020, are continued under the revised order. Jury proceedings affected by the order will be reset by further order of the assigned judge.

On May 21, 2020, the Delaware Court of Chancery issued an opinion in Univar denying a holder’s ripeness challenge to an administrative subpoena for documents issued by the Delaware Department of Finance pursuant to the amended provisions of the State’s abandoned and unclaimed property law.

The first quarter of 2020 has brought interesting Delaware law developments for private, venture-backed companies. As is often the case, arising issues for companies in the venture capital and private equity space have had a different emphasis from the public company area. While public companies may be considering issues such as “virtual” stockholder meetings, delayed dividends and MACs in merger agreements, we have identified five main Delaware law highlights below in the VC/PE space.

For Delaware, the legal home to thousands of “holders,” collection of, and fiscal reliance on, unclaimed property has always been tricky.

One of the many significant developments in the field of trust lawover the past decade has been the increasing popularity of so called “silent trusts”. The term “silent trust” generally describes an arrangement in which a trustee is prohibited under the terms of a governing instrument from providing information to the trust’s beneficiaries, or where the trustee is relieved from its common law duty to provide information to beneficiaries, so that information is only shared when it’s deemed appropriate.

Morris Nichols attorneys Todd Flubacher and J. Zachary Haupt authored three guides on Delaware law for Practical Law. Their Delaware Estate Tax Q&A guide addresses whether a jurisdiction has any estate tax or other similar taxes imposed at death and, for jurisdictions currently imposing a state estate tax.

The U.S. District Court for the District of Delaware modified its COVID-19 standing order today. Although the Court remains open, all jury trials scheduled to begin before May 31, 2020, are continued under the revised order. Jury proceedings affected by the order will be reset by further order of the assigned judge.

As COVID-19 continues to affect the legal community and the world in various ways, Delaware courts and state agencies have issued orders concerning COVID-19 measures. Here, we have consolidated key Delaware law resources on the unfolding situation. Our attorneys are committed to serving our clients through this challenging time.

In light of the health risks posed by COVID-19, on April 6, 2020, Delaware Governor John C. Carney issued a modification of Delaware’s state of emergency first declared on March 12, 2020, to provide some flexibility to Delaware public corporations that have already sent notice of meetings to be held at a physical location.

On February 20, 2020, Delaware’s VDA Administrator mailed invitations to enter into the State’s Abandoned and Unclaimed Property Voluntary Disclosure Agreement Program (“VDA Program”) to more than 100 companies identified as likely being out of compliance with Delaware’s Unclaimed Property Laws. By statute, an invitee has 60 days from the invitation’s mailing to enroll in the VDA Program or the company will be referred to the State Escheator for audit.